tampabay.com

Judge: No prison in SOCom lying case

By CARRIE WEIMAR
Published April 21, 2007


TAMPA - A former private defense contractor convicted of lying under oath avoided prison Friday after a federal judge said he had serious concerns about the case.

A federal jury found William E. Burke guilty of giving a false statement in court in January. But at Burke's sentencing hearing Friday, U.S. District Judge James Moody said he would have found Burke not guilty.

While he did not throw out the jury's verdict, Moody sentenced Burke to three years of probation, rejecting the prosecution's request to follow the federal sentencing guidelines and imprison Burke for up to two years.

"Normally, I think I'm harder than any other judge in this courthouse on anybody who isn't telling the truth," Moody said. "The case is bothering me, and I think the guidelines call for a sentence that is uncalled for in this case."

Six months of Burke's probation must be spent under house arrest, Moody said. It is the same sentence Burke received in a plea bargain he accepted for his part in the case against retired U.S. Army Col. Tom Spellissy.

He must serve the two sentences consecutively, Moody said.

In October 2005, Burke, a former private contractor at U.S. Special Operations Command, pleaded guilty to accepting $4,500 in bribes from Spellissy.

But at Spellissy's trial seven months later, Burke testified he wasn't bribed and denied any wrongdoing.

Despite Burke's recantation, a jury found Spellissy guilty of two counts each of bribery and wire fraud, and one count of conspiracy. Two months later, a federal judge threw out most of the jury's verdict, calling it a "serious miscarriage of justice."

At Friday's hearing, prosecutor Robert O'Neill accused Burke of "torpedoing" the case against Spellissy.

He said Burke had plenty of chances to tell prosecutors about his change of heart before taking the stand in Spellissy's trial. He said Burke never mentioned his misgivings, even on the night before his testimony.

"No one was hurt, no," O'Neill said. "But the whole system of justice was hurt."

But Burke's attorney, Daniel Hernandez, said his client wasn't lying when he made the contradictory statements. His understanding of the truth changed dramatically after accepting the plea, Hernandez said.

Burke said he never considered his actions illegal until he was approached by law enforcement in May 2005.

He said he was confused but agreed to sign a plea agreement stating he accepted bribes from Spellissy.

Burke also said he was intimidated by an agent who told him, "We know where you live and we know where your family lives."

On Friday, Burke apologized to Moody and to his family.

"I sincerely didn't mean for this to get to this stage," Burke said. "I didn't mean to hurt anybody."

Following the hearing, Hernandez called it a "good day" for Burke, who lost his job at SOCom after his arrest and now works for a lawn service.

"I think the judge had a clear understanding that there were a great deal of mitigating circumstances in this case," Hernandez said.

But Burke has another legal hurdle to clear. Because he was on probation when he was charged with making a false statement in court, Burke must now appear before a judge for violating his probation.

His hearing is scheduled for next week.

Carrie Weimar can be reached at 813 226-3416 or cweimar@sptimes.com.